Who counts as a child? And what counts as a family?

When the Property (Relationships) Act 1976 refers to children, it means the children of both partners, such as their biological children.

It can also mean other children who are ‘members of the family’. They might be children of either or neither partner. For example, they might be stepchildren, foster children and children who are also members of another household.

In one case, the court said that to be a member of the family means the child must have a presence in or belonging to the partners’ household. Sometimes the court has said non-biological children are not members of the family.

We want to know whether the law’s focus is appropriate.

Modern New Zealand families are diverse. Some children, particularly stepchildren, may live in the partners’ household or a different household depending on how care is shared. Some children may be informally adopted or whāngai. Other children may be financially supported by a parent, but will not live in their household, such as children that live with the other parent.

Moira and Henri

Moira and Henri live together in Hamilton. Henri has children from a previous relationship. The children live mainly with their mother in Nelson. Moira and Henri have care of the children for about four weeks a year when they come to stay for holidays. During that time both Moira and Henri provide full parental care for the children. Moira and Henri travel to Nelson for two weeks each year to spend more time with the children. Henri pays child support. Moira and Henri will frequently pay for other things for the children, like sports lessons, new clothes, computers and orthodontic work.

If Moira and Henri separated, should the children be considered members of Moira and Henri’s family?

Some people may have a different understanding about what family is. For instance the Māori concept of whānau extends beyond the immediate family. Many Pākehā also have a wider view of who is a member of their family.

Do you think the law needs a new definition of ‘member of the family’ to include more children who are not children of both partners? That would require the court to have regard to the interests of more children. It could also mean changes in other areas. For example, having a child may mean that more short-term de facto relationships would fall under the Property (Relationships) Act. Sometimes a partner’s contributions to a relationship can be relevant. Care of children is a contribution, so including more children would mean childcare is relevant in more cases.

For more information:

Our Study Paper, and Issues Paper provide a more comprehensive look at the work we are doing. They also ask more detailed and technical questions as part of our public consultation. We have condensed the information on this website into a Consultation Paper.

Contact us

You can contact the Law Commission by emailing pra@lawcom.govt.nz or calling our office at 04 473 3453.